Introduction from Mark Warwick QC
As explained in the First Bulletin, during the coronavirus pandemic, Selborne Chambers will be providing you with a series of bulletins on the legal (both substantive and procedural) implications.
In this second bulletin, Alice Hawker, Sarah Walker and Rosamund Baker offer practical tips on how to conduct litigation in the current climate.
Selborne Chambers remains open for business (albeit remotely) during this time. It is clear that a lot of our instructing solicitors are using their time to work on instructions. I can assure you that Selborne has ample capacity to provide members, at all levels of seniority, to cater for your needs. If you have any queries or requests, please do not hesitate to contact a member of the clerking team on +44 (0)20 7420 9500 or at firstname.lastname@example.org.
The Courts’ Approach(es) to Covid-19
Over the course of the last week, various pieces of guidance or protocol have been issued by the courts and tribunals to govern procedure for hearings. Reference to those documents can be found in Bulletin 1. We have set out some points on how the guidance works in practice:
- High Court: the High Court has been hearing the vast majority of its cases by telephone or by Skype. It may be noted from the daily court lists that Judges in the Rolls Building appear to have a preference for Skype (or sometimes Zoom) rather than telephone.
- ICC: the Insolvency and Companies Court is restricting to hearings to urgent cases. In particular, the Winding Up List last week has been adjourned to dates in June onwards with provision for applications for dismissals to be heard remotely and withdrawals to be dealt with on paper.
- County Court: in the County Court, hearings seem to have been predominantly by telephone.
- CCCL: in the County Court at Central London, bankruptcy petitions are being adjourned for 3 months with provision for dismissals or withdrawals to be dealt with on paper and the extension of time for the registration of company charges and restoration of companies lists are to be dealt with entirely on paper;
- Possession Hearings: under the new Practice Direction 51Z all proceedings for housing possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for 90 days from 27 March 2020. Claims for injunctive relief are not subject to that stay;
- First-Tier Tribunal: the First-Tier Tribunal has been asking for parties’ opinions on how the case should proceed, with the first option being consideration on the papers, the second a remote hearing and the third a listing later in the year;
- Court of Appeal: Mark Warwick QC and Nicholas Trompeter represented (respectively) the appellant and second respondent in a hearing in the Court of Appeal on 24 March. The hearing took place via a “meeting” on Microsoft Teams (administrated via Selborne Chambers) and was unrobed. Although the case had been listed for two days, the Court informed the parties that it would have to be concluded in one. Overall the hearing proceeded efficiently and all advocates were able to hear and respond to interventions from the bench.
Practical tips for a Remote Hearing
E-Bundles. Some courts are still functioning with hard copy bundles. Others are now requiring e-bundles of core documents only. Guidance on the general requirements for an e-bundle in the civil courts is here (see paragraphs 24 to 26). The Upper Tribunal has also issued guidance on how to put together its e-bundles here (see the Appendix). In terms of lodging the bundle, ce-file can be used if available and, if not, the court prefers a link to an online data room but will also accept email or delivery of a USB stick.
Is the case suitable for a remote hearing or should it be adjourned? Commentary was provided last week on the guidance as to what kind of hearings will be suitable for remote hearings. Nevertheless, the parties may wish to think a little creatively about how justice can be done in the current circumstances. As the parties discovered in Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd & Ors on 25 March 2020, there is scope to impress a Judge by making practical and imaginative proposals to avoid adjourning trials, such as putting questions to experts in writing pursuant to CPR r. 35.6, full written submissions coupled with a reading guide instead of skeleton arguments, and short hearings for Judicial questions. These alternative ways forward will be balanced against the fundamental principles of open and natural justice, so it is important to think about what is appropriate in each case.
We have also heard that, at least in Birmingham, the Presiding Judges have indicated that fees should not be charged for applications to either vacate a hearing or convert it to a remote hearing. We are not aware of indications from other courts at this time.
Preparing for and attending a remote hearing. The courts are expecting parties to be proactive in their preparation for remote hearings. This applies particularly to legal representatives where the opposition is a litigant in person. The most important practical points to note are:
- Make sure you contact the other side and the court about having a remote hearing as soon as possible.
- Make sure that you have the right software – the courts generally seem to prefer Skype for Business. You cannot now download this as it is being phased out but the replacement software, Microsoft Teams, is compatible. If you are against a litigant in person, try to make contact and to establish how they can be included. If they cannot, the court may well be forced to adjourn.
- Think about who will host. For example, in the Court of Appeal case mentioned above, Selborne Chambers hosted the conference, for the other participants to join. We are able to offer this service on all hearings (if the court/tribunal wish for us to).
- Get set up early and be ready on time.
- Think about whether the lay client needs to attend the hearing remotely and if they do, how they will be able to communicate with you. Similarly, think about how you can get any comments or further instructions given remotely to your barrister during the hearing.
- Make sure that you have a good internet connection.
On Wednesday, the Lord Chancellor signed a Practice Direction in relation to video or audio hearings during COVID-19. Its effect is to clarify when the courts may hear a remote hearing in private and also when a hearing is to be considered to have been held in private (the key point here is that if a member of the media can be given access to the remote hearing, it will be deemed to have been held in public).
The Substantive Effect of COVID-19
Once the procedural issues are resolved, many cases are proceeding as normal and there should be little effect on any court’s substantive decision.
Timing. The first exception to that is any matter in which a party may request more time. The courts are aware that the current crisis means that parties cannot act in the timescales previously expected. Arguments relating to COVID-19 will be relevant to applications for relief from sanctions, bankruptcy petitions and case management directions to name a few. Parties should not forget, however, that they will need to demonstrate why the COVID-19 crisis has meant that they require more time.
Possession Proceedings. The second exception relates to possession proceedings. The Coronavirus Act 2020 came into force on 25 March 2020. This was swiftly followed by Practice Direction 51Z coming into force on 27 March 2020. In summary:
- For assured tenancies, any notice served under section 8 or section 21 of the Housing Act 1988 between 25 March 2020 and 30 September 2020 must give 3 months’ notice. This period applies irrespective of the ground relied upon and can be extended by regulations. There are similar provisions in respect of other types of residential tenancies. See section 81 and Schedule 29 of the Coronavirus Act 2020.
- For business tenancies, there can be no forfeiture, by proceedings or otherwise, for non-payment of rent between 25 March 2020 and 30 June 2020. If proceedings were commenced prior to 25 March 2020, the Court will not make any order for possession for a date prior to 30 June 2020. If an order has already been obtained for possession between 25 March 2020 and 30 June 2020, the order will be varied (by application of the tenant in the High Court and automatically in the County Court) to an order for possession on or after 30 June 2020. Further, if a landlord is relying upon persistent delay in paying rent in a notice under section 25 of the Landlord and Tenant Act 1954, the court will disregard any failure to pay from 25 March 2020 to 30 June 2020. See section 82 of the Coronavirus Act 2020.
- All possession proceedings under CPR r. 55 and proceedings for the enforcement of possession orders are stayed until 25 June 2020. See Practice Direction 51Z.
Some points to note are:
- Landlords will not waive the right to forfeit for non-payment of rent by accepting rent from 25 March 2020 to 30 June 2020.
- For business tenancies, this moratorium applies not just for ‘rent’ strictly speaking but for any sum due under the tenancy.
- The protection for business tenancies applies not just to tenancies within Part 2 of the Landlord and Tenant Act 1954 but also to any tenancies that would fall within that part if the occupier were the same party as the tenant.
- Practice Direction 51Z appears to extend beyond the provisions of the 2020 Act, providing protection (in court proceedings at least) to others including (1) business tenants vulnerable to eviction by reason other than forfeiture for rent arrears e.g. by notice under section 25 of the Landlord and Tenant Act 1954; (2) residential long leaseholders; and (3) trespassers of any kind.
Remote working and document execution. Another thing to think about is verification of documents during this period of remote working. Electronic signatures may begin to be used far more. Whilst these are a valid way to verify a document, do make sure that any necessary formalities are complied with and keep watch for a more detailed consideration of this point in the coming weeks.